Asylum credibility: timely new case from Strasbourg

In a case that in some ways exceptional but in many ways entirely ordinary, the UK Border Agency this week rejected an asylum claim by a young Afghan man. The reason the case was exceptional is that he had previously worked with the British armed forces and been horrendously injured in a Taliban attack that killed a British serviceman. The reason that the case is entirely ordinary is that the UK Border Agency followed its normal processes and approach. The fact the man was covered in scars was irrelevant as there was no ‘proof’ of what caused them. This reasoning is standard even for very serious injuries. The easily authenticated documents presented by the man were rejected out of hand as being capable of being forged. This is standard practice at UKBA who refuse to attempt to check any original document (and yet always demand originals). The easily verifiable account given was rejected as featuring ‘inconsistencies’, even though it took a Newsnight journalist 20 minutes to find two independent sources to confirm the account. This total absence of forensic ability or, frankly, interest by UKBA officials is also typical.

The pernicious, poisonous culture of disbelief that pervades the UK Border Agency is well documented. The Children Society recently reported the effect on children. Asylum Aid published a report last year showing that women were disproportionately refused asylum by officials for arbitrary and unsustainable reasons. This blog has in its own way sought to highlight some of the absurdities of the standard template reasons for refusal that feature in too many decisions.

However, The Daily Mail has been horrified by the man’s ‘astonishing’ and ‘farcical’ treatment at the hands of asylum officials and report that the decision has been withdrawn:

Last night the Agency said it would look again at the case after it appeared that the most basic checks had not been made by officers investigating the 26 year-old’s claim despite it having been lodged 14 months ago.

It is nice to have the Mail on board, and the strength of the campaign run by that newspaper can teach everyone a few lessons in how such things are done.

In an almost unbelievably serendipitous bit of timing, the European Court of Human Rights also this week held that it is a breach of the European Convention on Human Rights to dismiss an asylum claim without even attempting to verify documents presented by the asylum seeker that go to the heart of the issues in the case. Many thanks to the AIRE Centre’s excellent Adam Weiss for flagging it up on Twitter yesterday. The case is Singh and Others v Belgium (application no. 33210/11) and it is a Chamber judgment that is not necessarily final. The Court finds a combined breach of Article 3, freedom from torture or inhuman or degrading treatment or punishment, taken with Article 13, the right to an effective remedy. Unfortunately the judgment is in French (mais non!) but the Court has prepared a press release in English that seems to provide a good summary.

The case was also an Afghan one where the applicant’s nationality was not accepted, this time by the Belgian authorities. The applicants appealed the initial refusal and by the time of the appeal had managed to obtain new evidence showing they had been under the protection of UNHCR in India (suggesting circumstantially that they were Afghan) and that one of them had at that time been delivered a genuine Afghan passport by the Afghan embassy in New Delhi.

The new documents were rejected on appeal on the basis that the UNHCR documents were easy to falsify and without originals the documents had no probative value.

The failure by both the initial decision maker and the appeal body to attempt to verify the authenticity of the highly pertinent documents “was at odds with the close and rigorous scrutiny that the Court would have expected of the domestic authorities, which had thus failed to ensure effective protection against treatment in breach of Article 3.”

The case potentially signals the end of the unedifying era of Tanveer Ahmed (the case deciding that documents stand or fall with the general credibility of the document holder) and should be a wake up call for both the UK Border Agency and the immigration tribunal: the shared burden of proof in asylum cases is real and does not allow for the passive shirking of responsibility. If pertinent documents are capable of quite easy verification then that verification must be undertaken before the documents are rejected as potentially false.

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Colin Yeo
A barrister specialising in UK immigration law at Garden Court Chambers in London, I have been practising in immigration law for 15 years.
I am passionate about immigration law and founded and edit the Free Movement immigration law blog.

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